Should the surviving Boston bomber have been classified an enemy combatant?

There is some controversy over whether the decision to treat Dzhokar Tsarnaev, the surviving Boston bomber, as a criminal in the civilian court system was the right way to go. White House spokesman Jay Carney defended this decision on Monday:

He will not be treated as an enemy combatant. We will prosecute this terrorist through our civilian system of justice. Under U.S. law, United States citizens cannot be tried in military commissions. And it is important to remember that since 9/11, we have used the federal court system to convict and incarcerate hundreds of terrorists. The effective use of the criminal justice system has resulted in the interrogation, conviction and detention of both U.S. citizens and noncitizens for acts of terrorism committed inside the United States and around the world.

The system has repeatedly proven that it can successfully handle the threat that we continue to face. And there are a number of examples of this — high-profile: the Times Square Bomber, Faisal Shahzad, pleaded guilty and was sentenced to life in prison. Abdulmutallab, the so-called Underwear Bomber, was sentenced to life in prison. Warsame, a Somali national who was a member of Al Shabaab and has close associations with Al Qaeda in the Arabian Peninsula, is now currently in this system and we have acquired valuable intelligence from him through the process that is allowed in the system.

So this is absolutely the right way to go and the appropriate way to go. And when it comes to United States citizens, it is against the law to try them in military commissions.

(Hat tip to RealClearPolitics for the full transcription.) Among the leading critics of this decision is Senator Lindsey Graham (R-SC), as quoted by Yahoo News:

“I strongly disagree with the Obama administration’s decision to rule out the enemy combatant status for the suspect at this time. I believe such a decision is premature. It is impossible for us to gather the evidence in just a few days to determine whether or not this individual should be held for questioning under the law of war,” Graham told reporters Monday during a press conference on Capitol Hill. “The last thing in the world we should do in the times in which we live is to limit our ability to gather intelligence to the criminal justice system. In essence, you will have turned over the intelligence-gathering process to the accused and their lawyer.”

Graham said evidence was “ample and overwhelming” to him that the attacks that left three dead and more than 200 injured were “inspired by radical Islamists.” He said it would be appropriate to gather as much intelligence as could be obtained about the man’s possible connections with international terror groups before reading him Miranda rights while in custody. Any information collected, however, would not be used for the criminal case, he added.

“No criminal defendant should ever be required to incriminate themselves in a criminal case,” Graham said. “Every nation at war should have the ability to defend themselves by gathering intelligence. These are not mutually exclusive concepts.”

Rep. Peter King (R-NY) echoed these sentiments, saying he was not worried about securing a conviction against Tsarnaev, presumably because the evidence against him is so overwhelming. “I want the intelligence so we can save American lives, and that can only be done, I believe, effectively if he is treated as an enemy combatant and denied access to a lawyer,” said King, who wound up debating the point with Senator Dianne Feinstein (D-CA) on Fox News Sunday.

The essence of this dispute is that under current law and precedent, we cannot treat Tsarnaev as an enemy combatant unless ties to an international terrorist organization are proven – the relevant legislation, dating from the aftermath of 9/11, specifically mentions al-Qaeda and the Taliban. But it’s very difficult to “prove” such ties without the sort of intelligence Rep. King describes, and it’s difficult to extract such intelligence once a criminal prosecution is under way. Thus far, Tsarnaev is said to have been cooperative, which would suggest he’s interested in working out a deal for himself, or perhaps feels some degree of remorse. He could, however, begin invoking his Fifth Amendment rights against self-incrimination at any moment, with the support of his legal defense team.

A public safety exception was invoked to delay reading Tsarnaev his Miranda rights for 48 hours, which was reportedly enough time for the FBI’s high-value detainee interrogation team to interview him. Senator Graham had earlier suggested that the Administration extend this period to at least 30 days.

Based on the information gathered thus far, officials are describing the Tsarnaevs as “aspiring jihadists” who were “motivated by their faith, apparently an anti-American, radical version of Islam,” as a Fox News report put it. Dzhokar Tsarnaev is said to have told investigators that they learned how to build bombs from the Internet. Without firmer ties to organized terror groups in evidence, there doesn’t seem to be any legal groundwork for the “enemy combatant” designation. Let’s hope Dzhokar keeps talking to those investigators.

Update: One other argument in favor of treating Dzhokar Tsarnaev as an enemy combatant is that, contrary to Jay Carney’s confident assertions and Rep. King’s casual assumption that conviction is assured, there’s no telling what will happen when the junior member of the Boston bombing team finishes bouncing around the pachinko machine of the U.S. criminal court system.

The Boston Heraldon Tuesday published remarks from “top-ranked defense attorneys who have represented some of the nation’s most notorious terrorists and killers.” These lawyers were virtually united in their opinion that Tsarnaev won’t get the death penalty… and to hear some of them talk about the “weak spots” in the government’s case, life in prison might not even be guaranteed:

Fieger and the other top defense lawyers say the government’s case is fraught with weak spots that a sharp defense attorney could exploit, starting with the possibility the feds failed to immediately Mirandize Tsarnaev, which could leave a gaping hole a good lawyer could drive his case through.

“This case is ripe for somebody who’s got the courage to stand up and talk about the system and the railroading of criminal defendants,” Fieger said. “He’s been denied the right to a fair trial. And America’s …cheering like it was some kind of sporting event. That wasn’t a very flattering image to the rest of the world. Cheering like they won the World Series.”

Tamar Brickhead, who defended shoe bomber Richard Reid, spoke of how an aggressive defense team could raise questions that the government had proved “beyond a reasonable doubt that [Dzhokar Tsarnaev] knowingly carried explosives in that knapsack, and with the intent to bring about mass destruction.” It sounds like this is going to be a long trial that many of us will have difficulty watching on a full stomach.

Update: One other thought occurs to me: Dzhokar Tsarnaev clearly has strong incentives not to say anything that would link him, or his brother, to international terrorism, particularly during that first crucial 48-hour “public safety exception.” Anyone held for terrorism can see that it would be foolish to reveal information that might lead to his designation as an enemy combatant. If this didn’t occur to Dzhokar earlier, it’s rather obvious now.

It’s clearly more advantageous to enter the U.S. criminal justice system than to be held as an enemy combatant – you get legal counsel and the other considerations afforded to criminal defendants, plus the opportunity to turn your trial into a circus, as the lawyers quoted by the Boston Herald anticipated.